AHMAD JAN Versus JAMALUDDIN

This is a revision application against the order of the learned Sessions Judge, Khairpur, dismissing the revision application pled against the order of the learned Magistrate holding that the offence fell under section 323, P. P. C., which was within the exclusive jurisdiction of the Conciliation Court where the petitioner should seek leis remedy.

2. The petitioner bad lodged first report with the police against the respondents, alleging that they had attacked him while he was going to his house after closing his shop at about 8-30 or 9-Oil p.m.on 4-6-1966. It was further alleged that respondent Jamaluddin had given him a dunda blow on his head and his cries attracted Yousuf Pehlwan and Intizar Hussain who rescued him. The first report was taken down in the station diary as according to the first report it way a case under section 323, P. P. C. which was non-cognizable I he petitioner was sent to the doctor who on examination found four injuries one on the back, one on the heat and other two on the left; thigh. According to the medics: other the injury on the basil: was caused by a knife while the remaining three injuries were caused by a lathi. On the basis of this opinion the case was registered under section 324, P. P. C. and after due investigation the respondents were challaned.

3. Tire learned Magistrate after recording the evidence came to the conclusion that originally there was one injury on the head caused by blunt weapon and the remaining three injuries were manipulated subsequently, and therefore, the offence under section 324. P. P. C. was not established, He was also of the opinion that no case was made out against appellant, Muhammad Siddiq. On the basis of this conclusion he acquitted both the respondents for an offence under section. 324 read with section 34, P. P. C. But with regard to injury on the head caused by the blunt weapon he refrained from giving any finding on the ground that this offence was under section 323, P. P. C. which was within the exclusive jurisdiction of the Conciliation Court. His observation in this behalf reads as under: -

"It is left undetermined whether the accused caused simple injuries to the complainant by lathi, as this would constitute an offence under section 323. P. F. C. which is within the exclusive jurisdiction of the Conciliation Court, where the complainant should seek his remedy, if so desired,"

Aggrieved by this order a revision petition was filed before the learned Sessions Judge, Khairpucr woo dismissed it was observed by the learned Sessions Judge that there was no mention, of injuries pertaining to knife in tile first report lodged far the petitioner and, therefore, it was sufficient to create doubt in the mind of the learned trial Court above the injury having been caused with knife and so neither the order was perverse nor there had been any miscarriage of justice. Against this order the present revision petition was directed.

5. On examination of the evidence there can be no manner of doubt that the conclusion of the learned trial Court and confirmed by the learned Sessions Judge that no knife injury had been caused to the petitioner and it was manipulated after, the first report was lodge, is unassailable, and, therefore, no fault can be found with the acquittal, of the respondents for an offence under section 324, P.P.C.

6. With regard to the order of the learned trial Court with holding further proceedings for the offence under section 323, P. P. C. I must say that the learned Magistrate misappreciated the legal position and the learned Sessions Judge did not apply his mind to it. There is no doubt that section 3 of the Conciliation Court Ordinance imposes a bar for the trial of offences falling under para. 1 of the Schedule to the Ordinance' by any criminal Court and in the present case the offence wall under section 323, P. P. C. which fell within para. 1 of the Schedule but at the same time the provisions of section 18 of the Ordinance cannot be ignored. It authorises the police to investigate the cognizable case irrespective of the fact whether ii falls under section 'A' of para. 1 of the Schedule. It is then left to the criminal Court to proceed with the case or direct that it should be referred to the Conciliation Court. The present case on the basis of the medical certificate was investigated by the police and challaned. Consequently the Magistrate had the jurisdiction to proceed with the trial of the case and this was actually done. The question which arises now for consideration is whether after it was found on trial that the offence fell within ' section 'A' of para. 1 of the Schedule the case had necessarily to be referred to the Conciliation Court or it was to be concluded by the Magistrate himself. In my view after the case was investigated by the police and, the offence was disclosed to fall under section 324, P. P. C. the learned trial Magistrate could not stop his hands from concluding the case simply because on the appraisal of the evidence he came to the conclusion that the case fell under section 323, P. P. C. The power to refer the case under section 18 can be invoked when the case when originally challaned is shown to fall in those categories of cases. The question of jurisdiction has to be decided in a reference to the case which has been set up initially and not on its final result or the course it takes during the trial. Undoubtedly the Magistrate is competent to try a case under section 324, P. P. C. and he can also eventually convict the accused persons under section 323, P. P. C. if on the examination of evidence the offence, a established, falls under that section.

7. The learned counsel for the respondents referred to the evidence and tried to argue the case on merits in order to show that no case at all was made out against the respondent and, therefore, no further proceedings would be necessary to be taken. It is not possible to accept this contention in view of the fact that the learned Magistrate did not express any opinion on the merits of the case so far the offence under section 323, P. P. C. is concerned and this Court would not embark upon the appreciation of evidence in revision as it is.

8. In the result the orders of the learned Sessions Judge and the learned Magistrate so far it relate to the stopping of the proceedings for an offence under section 323, are set aside, and further proceedings b; taken accordingly.

Petition accepted.